Resnick v. Hayes, et al., 98-15704

Citation213 F.3d 443,2000 WL 654114
Decision Date22 May 2000
Docket NumberNo. 98-15704,98-15704
Parties(9th Cir. 2000) HERMAN RESNICK, Plaintiff-Appellant, v. WARDEN HAYES; LT. ERNST; OFFICER MYERS (DHO); COUNSELOR AUNE; OFFICER WADE, Defendants-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

Page 443

213 F.3d 443 (9th Cir. 2000)
HERMAN RESNICK, Plaintiff-Appellant,
v.
WARDEN HAYES; LT. ERNST; OFFICER MYERS (DHO); COUNSELOR AUNE; OFFICER WADE, Defendants-Appellees.
No. 98-15704
U.S. Court of Appeals for the Ninth Circuit
Argued and Submitted October 7, 1999
Filed January 11, 2000
Amended May 22, 2000

Page 444

Howard A. Slavitt, Coblentz, Patch, Duffy & Bass, San Francisco, California, for the plaintiff-appellant.

No appearance for the defendants-appellees.

Kathleen Moriarty Mueller and Edward R. Cohen, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for the amicus curiae.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-98-00904-SBA.

Before: Alfred T. Goodwin, Mary M. Schroeder, and Susan P. Graber, Circuit Judges.

ORDER

The opinion filed January 11, 2000, is amended as follows:

Slip opinion page 333, last paragraph, through the first full paragraph on page 335, substitute the following:

Under Sandin, a prisoner possesses a liberty interest under the federal constitution when a change occurs in confinement that imposes an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." 515 U.S. at 484. In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution. That is so because Plaintiff has not alleged that his confinement, whether administrative or disciplinary, presented "the type of atypical, significant deprivation[that] might conceivably create a liberty interest." Id. at 486. The Court in Sandin relied on three factors in determining that the plaintiff possessed no liberty interest in avoiding disciplinary segregation: (1) disciplinary segregation was essentially the same as discretionary forms of segregation; (2) a comparison between the plaintiff's confinement and conditions in the general population showed that the plaintiff suffered no "major disruption in his environment"; and (3) the length of the plaintiff's sentence was not affected. Id. at 486-87.

Here, there is no allegation that Plaintiff's segregation in the SHU was materially different from those conditions imposed on inmates in purely discretionary segregation. Nor is there an allegation that the conditions in the SHU, compared with conditions in the general population, created "a major disruption" in Plaintiff's environment.3 Finally, there is no allegation that the length of Plaintiff's sentence was affected.

In sum, so far as we know from his complaint, Plaintiff's placement and retention in the SHU were "within the range of confinement to be normally expected" by prison inmates "in relation to the ordinary incidents of prison life." Id. at 486-87. Therefore, we conclude that Plaintiff had no protected liberty interest in being free from confinement in the SHU pending his disciplinary hearing. That being so, Plaintiff has no cognizable due process claim. Likewise, because Plaintiff had no protected liberty interest in not being confined in the SHU, he fails to state a Fourth Amendment claim.

With this amendment, Appellant Herman Resnick's Peti- tion for Panel Rehearing is DENIED.

---------------

Note:

3. Plaintiff alleged that, in the SHU, recreational opportunities and access to showers are limited; the mattress is flat and dirty; no pillow is allowed; a prisoner cannot have access to the library; and half the time the food is cold. He did not allege that conditions were different in administrative segregation, nor did he allege the extent to which conditions were better in the general population.

---------------

Page 445

OPINION

GRABER, Circuit Judge:

At all times relevant to this appeal, plaintiff Herman Resnick was a federal prisoner. Defendants are the warden (Hayes) and four correctional officers (Ernst, Myers, Aune, and Wade) who work at a prison in which Plaintiff was incarcerated. Plaintiff filed a complaint in federal district court, claiming that Defendants had violated his constitutional rights when they confined him in the prison's Special Housing Unit (SHU) pending a disciplinary hearing. The district court dismissed Plaintiff's complaint, pursuant to 28 U.S.C.S 1915A, for failure to state a claim upon which relief could be granted. Plaintiff filed this timely appeal.

BACKGROUND

On December 2, 1996, Plaintiff was charged with, and pleaded guilty to, bank larceny in violation of 18 U.S.C. S 2113(b). After pleading guilty, and at all...

To continue reading

Request your trial
2802 cases
  • Quiroga v. Graves
    • United States
    • U.S. District Court — Eastern District of California
    • March 15, 2018
  • Velazquez v. Gmac Mortg. Corp.
    • United States
    • U.S. District Court — Central District of California
    • December 22, 2008
    ... ... accepted as true and should be construed in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). A court need not accept as true conclusory allegations ... ...
  • Jones v. Arnette
    • United States
    • U.S. District Court — Eastern District of California
    • October 9, 2018
  • Saavedra v. Kernan
    • United States
    • U.S. District Court — Eastern District of California
    • June 24, 2016
  • Request a trial to view additional results
2 books & journal articles
  • U.S. Appeals Court: PLACEMENT.
    • United States
    • Corrections Caselaw Quarterly No. 2000, February 2000
    • August 1, 2000
    ...v. Hayes, 213 F.3d 443 (9th Cir. 2000). A federal prisoner brought a [sections] 1983 action claiming that a warden and correctional officers violated his constitutional rights when they confined him in the prison's special housing unit. The district court dismissed the action and the prison......
  • U.S. Appeals Court: PRE-SENTENCE DETENTION.
    • United States
    • Corrections Caselaw Quarterly No. 2000, February 2000
    • August 1, 2000
    ...v. Hayes, 213 F.3d 443 (9th Cir. 2000). A federal prisoner brought a [sections] 1983 action claiming that a warden and correctional officers violated his constitutional rights when they confined him in the prison's special housing unit. The district court dismissed the action and the prison......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT